Federalism

Federalism is the system of co-sovereignty current in the United States, and various other nations[1] such that a national or federal government shares power along with state governments over the same territory and citizenry. More specifically, federalism involves dual sovereignty, or the allocation of power between the federal government and the states under the U.S. Constitution, with overlapping authority.

In the United States the states "surrendered many of their powers to the new Federal Government," but retained "'a residuary and inviolable sovereignty.'" Printz v. United States, 521 U.S.98, 918-19 (quoting The Federalist, No. 39, at 245, James Madison). This dual sovereignty is "reflected throughout the Constitution's text." Id. at 919. The continued existence of state sovereignty is "implicit . . . in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones." Id.

Federalism is determining which powers and duties belong at the federal level and which belong at the state level. Under the Articles of Confederation, the states had most powers, and the Constitution was drafted with the purpose of granting the federal government additional powers. Under the Constitution, individual issues would be framed in terms of states' rights vs. the federal government role. From 1800 until 1860, this debate was mostly viewed from the perspective of slavery vs. abolition of slavery. Following the 1960s, the federalism debate has been viewed through a liberal vs. conservative perspective.

Chief Justice William Rehnquist was a proponent of curbing the overreaching of the federal government. His leading decision was a 5-4 ruling in United States v. Lopez, 514 U.S. 549 (1995), which invalidated on federalism grounds a federal law prohibiting the carrying of firearms within 1,000 feet of the grounds of a public, parochial or private school. The leading Supreme Court decisions limiting the federal role, nearly all written by Justice or Chief Justice William Rehnquist, are:

Justice Kennedy, who as of 1997 was the pivotal fifth or "swing" vote on the U.S. Supreme Court, has also embraced federalism. "[F]ederalism was the unique contribution of the Framers to political science and political theory. Though on the surface the idea may seem counter-intuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one."[2]

Since that ruling, there have been many decisions by the Supreme Court and lower courts limiting federal power to interfere with state sovereignty in fields of traditional state control. For example, The Fifth Circuit held that "[w]here Congress aims to change the usual constitutional balance between the states and the federal government, it must make unmistakably clear its intention to do so in the statute’s language." Premiere Network Servs. v. SBC Comm., 440 F.3d 683, 690 n.8 (5th Cir. 2006) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) and Gonzales v. Oregon, 546 U.S. 243 (2006), emphasis added).